HKSAR v. MOHAMMAD, ABID

HCMA860/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 860/2005

(ON APPEAL FROM STCC 7910 OF 2005)

_________________

_________________

________________

J U D G M E N T

________________

1.  This is an appeal against conviction in respect of five charges of being the employer of a person not lawfully employable.  In a word, a policeman attended some commercial factory premises, found five people working there who were not lawfully employable, and he spoke to the Appellant in this case who said that he had hired them.

2.  The Appellant was arrested.  A post-record of the admissions made at the scene was made and further questions were then asked.  All of that conversation was in Punti and the post-record with following questions was in Chinese characters.

3.  Three days then went by.  The Appellant was interviewed this time by an Immigration Officer who had an interpreter with him.  The interpreter spoke Urdu and the interview commenced with the officer asking a question in English that was translated into Urdu.  The Appellant replied in Urdu.  Then his reply was written down in a script that records the Urdu.

4.  That occurred until Question 6 when this was asked:  “Do you want to write down your answers by yourself or ask someone to write them down for you?” and the answer was, “The interpreter will write down my answers.  I want the statement to be taken in English and the interpreter will tell me in Urdu.  My written Urdu is not good”.  The interview then proceeded with English question into Urdu, Urdu answer, which was then translated and written out in English.

5.  In relation to the facts, it is right to say here that the written post-record in Chinese characters has parts written in the hand of the Appellant.  What is noteworthy is that the Chinese characters display a lack of skill.  They are large and lack that characteristic neatness that one associates with written Chinese characters.

6.  Objections as to the admissibility of what was said at the scene and the two written documents were made before the Magistrate.  The Defendant gave evidence on that special issue. The Magistrate admitted all of the material into evidence.  The Appellant did not give evidence on the general issue.

7.  The Magistrate was satisfied that the witnesses - there were three of them, the police officer, the interpreter and the Immigration officer at the second interview - were all honest and believable witnesses.  He said that “PW1 gives a very clear account of what he did on attending the scene and what he saw, and that after he had made initial inquiries he then had a conversation with the Appellant in Punti.  He had no difficulty in understanding or carrying on a conversation with him.  I accept that to be the case”.

8.  Mr Burkett in this appeal realistically does not seek to attack the finding made by the Magistrate that those three prosecution witnesses were honest witnesses.  What he says is that on the findings that follow the acceptance of their evidence, especially looking at the writing of the Punti and the change of recorded language in the second interview, the Magistrate should not have been sure that the Appellant understood sufficiently such that either the Magistrate should have exercised his discretion not to admit the material into evidence or, if he did, he should have given it no weight, or such little weight that it would not found the convictions.

9.  The transcript includes the evidence of the interpreter, and I hope I do not do it injustice to paraphrase it like this:  he was hot and angry at the suggestion that was made to him, in effect, that he did not interpret properly, and even on the transcript that was an impressive reaction.

10.  It is right to note that Direction No. 6 of what we loosely call the Judges’ Rules says that the statement or record of interview should be recorded in a language used by the person making the statement or answering the questions.  It is clear that direction was not followed in this case.  But of course the Magistrate was faced with evidence, as I am, that the request for something different came from the Appellant himself.

11.  A counsel of perfection may have been that they should have used a belt and braces approach and first of all written down the answer in the Urdu script and then changed into English and translated there and then.  However, the breach of that direction of itself, of course, it is trite to say, would not render the statement inadmissible, but it is a matter to be borne in mind.

12.  I should also record that one of the grounds of attacking the statement that was made in Punti was the fact that its eight pages took some five and a half hours to record, and it is said that that, taken with the formation of the characters, this reinforces what should be a concern by the tribunals of fact dealing with this as to the capacity of the Appellant to understand what was being recorded.

13.  Mr Burkett has argued the matter very nicely, but it seems to me he could not really deal with the simple fact that this case included an admission made at the scene of which the police officer gave evidence.  He could refresh his memory from his notebook entry that was made later, not at the time.  He was found to be an honest witness and, at this stage, no question of being able to follow any particular written script arose.  If that was an honest witness, he truly related an admission to the court.

14.  I cannot see how whatever happened later about the understanding of Chinese characters or the recording being switched from Urdu to English could affect that, unless it be said that that of itself must demonstrate sufficient concern that PW1 is not to be trusted when he says the man spoke to him in Punti in a way that he could understand.  That did not worry the Magistrate and it does not worry me.

15.  I am afraid it is much too big a jump to look at the written material and go back and say the Appellant could not have made the answers in Punti.  This is a man, the Appellant, who has lived in Hong Kong since 1991.

16.  I do not decide the appeal just on that basis.  I look at the second interview and ask myself can I be sure the man speaking there was making admissions.  There was an honest interpreter there who can vouch for the fact that he understood the Appellant and carried on the conversation, the recording of which lasted several pages, ran to 22 questions, where those questions were sensibly answered, the Appellant providing detail.  If I ask myself is there any reason for me to doubt that the man was making those admissions, the answer is “no”. 

17.  In fact, I need say no more than that in order for me to dismiss this appeal against these convictions, and I have not needed to rely on the Punti statement.

18.  I know Mr Burkett says one has to look at the matter in the round and take everything into consideration, and somehow he says that what happened at the first statement might have infected in some way the taking of second statement three days later.  All I can say is I considered that and it raises no concern in my mind.

19.  On the material before me, I come to the conclusion that the convictions of the Magistrate should be upheld and I confirm his orders.